Insurance Law Research Articles

L’interprétation des clauses base-réclamation dans les contrats d’assurance de responsabilité civile au Québec

Le présent article aborde la question de l’interprétation des clauses base-réclamation en droit des assurances québécois. Définies principalement par la doctrine comme des clauses dont les effets consistent à assimiler le sinistre à la réclamation de la victime, le recours aux clauses base-réclamation suscite plusieurs interrogations quant à leur licéité à la lecture des articles 2396 du Code civil et 2414 du même code. Alors que le premier article définit le sinistre comme le fait dommageable, le second article énonce le caractère d’ordre public relatif des dispositions du chapitre XV du titre 2 du livre V du Code civil au rang duquel figure l’article 2396 du Code civil. L’article 2414 énonce que les dispositions du chapitre XV peuvent faire l’objet d’une dérogation si celles-ci avantagent le preneur, l’assuré, le bénéficiaire ou ne porte pas atteinte aux droits des tiers. Or, l’un des principaux effets des clauses base-réclamation est de restreindre considérablement l’action directe du tiers à l’égard de l’assureur, mais aussi, de faire peser sur le dos de l’assuré l’absence de diligence du tiers lésé. Dans le silence de la Loi, il incombe alors aux tribunaux d’apprécier la conformité des clauses base-réclamation à l’ordre public relatif énoncé à l’article 2414 par le truchement de l’ordre public virtuel. Cet article tente de proposer des moyens d’interprétations visant à établir l’illicéité des clauses base-réclamation.

The role of insurance at the intersection of Covid-19 and inequality through the lens of the cases: Cafe Chameleon CC v Guardrisk Insurance Company Ltd and Ma-Afrika Hotels (Pty) Ltd v Santam Limited

Insurance has the potential to make a positive impact on the financial stability and economic wellbeing of societies. However the Covid-19 pandemic has shone a harsh light on the consequences of both the insurance industry and the state’s failure to fully realise the right of ‘everyone’ to ‘appropriate social assistance’ in terms of s 27 of the Constitution of the Republic of South Africa, 1996. This was brought into sharp focus in the hospitality sector where the failure of insurers to pay business interruption policies resulted in business closures and job losses. An analysis of the business interruption court cases that followed highlights the progressive approach by the courts who applied a contextual and purposive interpretation of the insurance policies. I argue that this is in keeping with the objectives of insurance law set out in the Insurance Act 18 of 2017, which include the alignment of the insurance industry to the values of the Constitution.

Awareness about the New Social Health Insurance System, among Physicians in Primary Health Care Centers in Cairo governorate, and Factors Affecting it

Abstract Introduction The Government of Egypt is committed to attain Universal Health Coverage (UHC), and its progress in this vein has been spurred recently through the approval of the Social Health Insurance (SHI) law. Health providers are important stakeholders in the implementation of the SHI system. Objective The objective of this study was to estimate the level of awareness of physicians and managers in Primary Health Care Centers (PHCCs) in Cairo governorate about the new system and the factors affecting it. Method A cross-sectional study was conducted to estimate the awareness level of 100 physicians and managers from PHCCs in Cairo governorate in 2019. PHCCs subjected to this study were selected randomly from the official list of the PHCCs in Cairo governorate from the MOH, and the required sample of physicians was randomly selected inside each center. A semi-structured Arabic interview questionnaire was used, with a reliability coefficient of 0.70. Results The study revealed that the respondents’ awareness level of the new SHI System was mostly average (78% between Q1-Q3 of the total awareness score). Only 54% of the participants considered themselves aware of the new SHI system. 82% of the respondents expressed their desire to get more information about the new SHI system. The majority of participants (88%) reported that they did not attend any induction or training courses regarding the SHI system. Only 4% of the respondents stated that they are fully and clearly aware of their role in the new SHI system. Managers and older participants showed significantly higher means of awareness than the competitors groups. Conclusion The study concluded that the level of awareness about the SHI among the studied sample of the PHCCs physicians at Cairo governorate was averaged. Recommendation: Efforts should be enhanced for reaching out to the physicians in PHCCs, including those working in governorates where implementation of SHI system hasn’t commenced yet, especially to emphasize their understanding of the objectives and elements of the new system.

Analysis of the legal sources of the introduction of basic socialist values in the "Law on insurance"

The main socialist values are the soul of socialist legal construction. The introduction of basic socialist values into the construction of the rule of law is an inevitable requirement for maintaining a combination of State governance on a legal basis and State governance on the basis of moral norms, and this is an important way to strengthen the construction of basic socialist values. The promotion of the introduction of basic socialist values into legislation has become an important measure for the introduction of basic socialist values into the construction of law and order and an important way of implementing basic socialist values. From the point of view of the rule of law, upholding the basic socialist values in laws and regulations undoubtedly requires the transformation and elevation of basic values, such as politics and moral norms, to the level of legal norms, so that they can receive a source and normative characteristic of justice, execution and protection.However, from the point of view of judicial practice and social reality in China, there are other types of norms that serve as the basis for court decisions and the normative basis for the behavior of the subject. Therefore, the “Insurance Law” as the basic law in the fi eld of traditional commercial law, the introduction of basic socialist values developed by a legal source based on the central position of the legislator, and should be based on the Constitution of the Civil Code of China. Here is about the fact that the constitution is the main right and dominant in the legal system of any countryThe content “The state supports the basic socialist values” was added to article 24 “Amendment to the Constitution of the People’s Republic of China”, adopted on March 11, 2018. So that the basic socialist values are raised to the level and height of constitutional norms, and, thus, the defense of the basic socialist values has the highest legal force of the constitution. The Civil Code of the People’s Republic of China is guided by the “Constitution”, and in article 1 “the task of legislation” further proposes and requires “the promotion of socialist core values” and accepts the integration of the civil and commercial codes as a legislative tradition and legislative style.This is what provides the normative basis of the legal source for the introduction of the Law on Insurance into the basic socialist values. Principles and institutions, as the main forms of manifestation of law in the source of law, have also become two fi elds in which the basic socialist values are integrated into the Law on Insurance. Field integration at the level of basic principles should be mainly based on the principle of good faith, but based on the characteristics of insurance activity and insurance management, the overall integrity of the core values should be raised to the highest level of maximum integrity in order to offer a higher degree of honesty to insurance entities.Integration at the level of institutions requires not only the concretization of the principle of maximum integrity, but also the integration of basic values, such as freedom, equality, justice and the rule of law, into specifi c institutions in order to offer norms of behavior and justice for insurance entities and judicial authorities from the level of a legal source. In addition, from the position of judges in the center of justice, from the legal source, the introduction of basic socialist values has certain disadvantages, therefore, other types of norms besides legal sources should be introduced, such as appropriate judicial explanations about the Insurance Law, in this general fi eld, to help correct the shortcomings of the Insurance Law in the legal source, the full manifestation and implementation of the guiding and guiding role of the basic socialist values in the insurance legislation and insurance practice of China, the effective normalization and leadership of the healthy development of the insurance industry in China, as well as the demonstration and implementation of the contribution of insurance to the socialist economic order of China, and serves as a "stabilizer" of public order.

Review of cannabis reimbursement by workers' compensation insurance in the U.S. and Canada.

Changing public attitudes about cannabis consumption have currently led 36 U.S. states and the District of Columbia to approve laws that make cannabis available to consumers with qualifying medical conditions. This article reviews the 36 states and the District of Columbia with medical cannabis access laws to determine if the state or the District also allows reimbursement of the costs of cannabis for a work-related health condition under that state's or District's workers' compensation insurance (WCI) laws and administrative regulations. The legal basis for a state allowing or not allowing WCI reimbursement is described. The review found that only six of the 36 states expressly allow cannabis WCI reimbursement, six expressly prohibit it, 14 states do not require reimbursement, and 10 states, and the District of Columbia, are silent on the issue. The article describes the role of the insurer, treating physician, and worker in obtaining WCI reimbursement in the six states that expressly allow cannabis WCI reimbursement. Comparisons are made to how selected Canadian provinces and territories administer cannabis reimbursement under Canada's new national cannabis legalization law. The article discusses the future role of cannabis legalization in the United States and the evolving role of cannabis from an international perspective.

Comparison of Subrogation With Cession and Regression

The purpose of this article is to present one of the most problematic issues in the Civil Code of Georgia, which is manifested in the confusion of the institution of subrogation in insurance law with such institutions as cession and the condition of regression. They are close in content to each other, and this fact makes it difficult to see differences between them. Seeing the difference in content between them has not only theoretical but also practical significance, as each institution is characterized by a different legal outcome, and in each specific case the proper qualification of the relationship is crucial. One of the most practical different legal consequences of the given institutions is revealed in the different terms of the statute of limitations. For example, until 2012, it was unknown to the Georgian court that the statute of limitation of a subrogation starts from the period when the insurer has the right to claim damages against the insurance underwriter. Before then, it was an unknown fact that, different from regression, only legal relationship is established with one obligation in subrogation. In this article, we have discussed the distinctive features of subrogation, cession, and the condition of regression, and the accompanying legal consequences. We have discussed the decisions of the Supreme Court of Georgia, which discuss the differences in the content and results of the above-mentioned institutions. As a result, it was revealed that the practice of the Civil Court of Georgia before 2012 was unknown about the institution of subrogation, which is a really significant problem. It can be said that a uniform practice of the Supreme Court has been established at the Subrogation Institute and the problems that existed before have been solved.

Social insurance law and corporate financing decisions in China

This study investigates whether and how social security contributions affect corporate financing decisions. Treating the 2011 Social Insurance Law in China as a quasi-natural experiment, our difference-in-differences framework utilizes two-dimensional variations: initial social security contribution rates across firms (i.e., high vs. low) and year (i.e., before and after 2011). We find that more social security contributions cause firms to issue less debt in their capital structure, particularly firms with more severe labor market frictions, greater labor intensity, unhealthier financial status, tighter financial constraints, and those located in low-income areas with less developed financial systems and greater fiscal pressure. Mechanism tests show that firms’ operating leverage, bank credit default risk, and profitability volatility increase, while the supply of trade credit decreases, which is consistent with the financial distress hypothesis. The findings suggest that firms tend to choose conservative financing policies to mitigate the likelihood of financial distress caused by increasing social security contributions.

Management of frailty under COVID-19 pandemic in Japan.

Frailty prevention is a cornerstone for the extension of healthy life expectancy. It is a multi-dimensional construct that includes physical, mental, and social aspects. Frailty is reversible and can be attenuated by intervention; therefore, its early detection is important in primary and community care. The mainstream of disability prevention in Japan, which comprises the Japanese and local governments as well as healthcare workers, was a high-risk approach until 2014. Given the revision on Japan's long-term care insurance law, current ageing health policies have shifted to more population centric approach. Implements group activities called "Kayoi-no-ba" has been valued in Japan as disability prevention initiative. The Kihon Checklist - a 25-item questionnaire - has been broadly used by health experts and researchers to assess frailty in Japan. However, a new 15-item questionnaire has been newly developed to identify frailty and other health-related problems in older people of 75 years and above. This will enable providing the necessary support to frail individuals at any healthcare facility in local communities. The increase in frailty prevalence in older people has been concern during the COVID-19 pandemic. Home-based physical exercise programs are expected to be effective for frailty prevention. Utilization of information and communication technologies, social network services, and video calls has attracted attention for being effective tools to facilitate communication for older people during the pandemic. Further, life course approaches are needed to clarify the midlife risk of frailty development in later life.

Impact of Mental Health Insurance Legislation on Mental Health Treatment in a Longitudinal Sample of Adolescents.

Mental health insurance laws are intended to improve access to needed treatments and prevent discrimination in coverage for mental health conditions and other medical conditions. The aim was to estimate the impact of these policies on mental health treatment utilization in a nationally representative longitudinal sample of youth followed through adulthood. We used data from the 1997 National Longitudinal Survey of Youth and the Mental Health Insurance Laws data set. We specified a zero-inflated negative binomial regression model to estimate the relationship between mental health treatment utilization and law exposure while controlling for other explanatory variables. We found that the number of mental health treatment visits declined as cumulative exposure to mental health insurance legislation increased; a 10 unit (or 10.3%) increase in the law exposure strength resulted in a 4% decline in the number of mental health visits. We also found that state mental health insurance laws are associated with reducing mental health treatments and disparities within at-risk subgroups. Prolonged exposure to comprehensive mental health laws across a person's childhood and adolescence may reduce the demand for mental health visitations in adulthood, hence, reducing the burden on the payors and consumers. Further, as the exposure to the mental health law strengthened, the gap between at-risk subgroups was narrowed or eliminated at the highest policy exposure levels.

Credit in Agriculture: In the Perspective of Banking Law, Financial Market Law and Insurance Law

The present paper aims to contribute to the solution of the problem of sustainable financing for agricultural enterprises. Farmers face new challenges: the bureaucratization of public and private funding, the risk of over-debt in case of natural adverse events. Intelligent use of blockchain in loan agreements with assistance from trade associations and insurance for pecuniary losses due to adverse events can be an answer. Bank, Credit, Agriculture, Financial resilience

Certain Issues of Innovations Affecting the Insurance Business in the Light of the GDPR and Hungarian Insurance Law

Technological innovations affect many sectors of the economy, including the insurance business. Among these innovations, IoT-based (Internet of Things) solutions can be highlighted, the main feature of which is that real-time and continuous data collection is performed using the Internet, thus optimizing the risk management of the insurer. Given that a significant part of the data thus collected constitutes personal data, the rules of the General Data Protection Regulation (GDPR) should apply. The data protection examination of the technologies affecting the insurance institution raises several issues, which, in my view, significantly impede the application of these technological achievements. The study aims to explore these problems and attempts to make proposals to solve them.

Creation of a Longitudinal Legal Data Set to Support Legal Epidemiology Studies of Mental Health Insurance Legislation.

This article describes policy surveillance methodology used to track changes in the comprehensiveness of state mental health insurance laws over 23 years, resulting in a data set that supports legal epidemiology studies measuring effects of these laws on mental health outcomes. Structured policy surveillance methods, including a coding protocol, blind coding of laws in 10% of states, and consensus meetings, were used to track changes in state laws from 1997 through 2019-2020. The legal database Westlaw was used to identify relevant statutes. The legal coding instrument included six questions across four themes: parity, mandated coverage, definitions of mental health conditions, and enforcement-compliance. Points (range 0-7) were assigned to reflect the laws' comprehensiveness and aid interpretation of changes over time. The search resulted in 147 coding time periods across 51 jurisdictions (50 states, District of Columbia). Intercoder consensus rates increased from 89% to 100% in the final round of blinded duplicate coding. Since 1997, average comprehensiveness scores increased from 1.31 to 3.82. In 1997, 41% of jurisdictions had a parity law, 28% mandated coverage, 31% defined mental health conditions, and 8% required state agency enforcement. In 2019-2020, 94% of jurisdictions had a parity law, 63% mandated coverage, 75% defined mental health conditions, and 29% required state enforcement efforts. Comprehensiveness of state mental health insurance laws increased from 1997 through 2019-2020. The State Mental Health Insurance Laws Dataset will enable evaluation research on effects of comprehensive legislation and cumulative impact.

Zwanzig Jahre Mutterschutz in der Schweiz: Quid?

Twenty years of maternity protection in Switzerland: Quid? Aim: In 2001, the Maternity Protection Ordinance (MSV) came into force in Switzerland. The aim of our study was to better understand how the MSV is applied in two economic sectors, i.e. health care and food industry, in French-speaking Switzerland and how those affected deal with it. Method: A mixed method design was applied: quantitative surveys among 200 companies and 93 gynaecologists (GG) and case studies in six organisations with a total of 46 semi-structured interviews. Results: The GG estimate that they receive a risk analysis (RA) for only 5 % of pregnant women with an occupational hazard and 35 % of GG never/rarely request an RA. Sick leave is preferred to protective leave. Almost half (48 %) of the companies involved stated that they have in-house procedures that correspond to the Swiss MSV. Nevertheless, only 25 % (n = 51) stated that an RA was carried out in their company, and only 15 of these were prepared by a qualified specialist. We extrapolated from stratified random sampling that 6 % of companies in the health care sector and 1 % in the food industry are legally compliant with the MSV. Affected women develop various strategies to reconcile pregnancy and work and they rely heavily on their colleagues and on the GG. Conclusions: Maternity protection at work is only marginally implemented in Switzerland. The question arises as to how the implementation can be improved and whether certain insurance law content of the MSV should be revised. Keywords: maternity protection – risk analysis – workplace adjustments – sick leave – protective leave

The German Social Security System for Farmers

On the one hand, the complex, constantly evolving system of German Agricultural Social Insurance guarantees each individual insured person comprehensive protection under social insurance law comparable to that for the general population. On the other hand, the state supports not only farms but agriculture as an economic sector as a whole with a reliable and massive financial contribution. The history, tasks, responsibilities, benefits, financing and organisational structure will be presented as well as prevention, special programmes and international relations. In doing so, all four branches of the German Agricultural Social Insurance System are dealt with by means of the descriptive method.

Flight Insurance: National and International Regulatory Experience

The article considers the legal regulation and the specifics of aviation insurance in Russia. Currently, the use of air transport is growing all over the world, including Russia. Accordingly, the likelihood of risks that threaten the property, health and life of aircraft owners, users of air transport services and third parties increases. The study aims at examining the legal regulation of aviation insurance, revealing its issues and searching for their solutions. It dwells on both general and special insurance legislation and its principles. The authors of the article analyze the basic insurance laws concerning the regulation of relations arising from flight insurance. They disclose the essence of compulsory civil liability insurance of aircraft owners that consists in the fact that the object of this insurance is exclusively compensation for property damage, while health, life and moral damages are not reimbursed. The authors highlight the specifics of the aviation insurance system. They describe the issues of flight insurance and the international experience of their solution. Certain aspects of international insurance regulation are compared with the Russian insurance legislation.

Direct and spillover effects of social insurance reform: evidence from Vietnam

The introduction of the 2014 Social Insurance Law is a key reform of social protection in Vietnam. This article may be the first work quantifying the effects of the law’s introduction on family welfare. The propensity score matching combined with the difference-in-differences techniques is used to reduce bias. The study indicates that the generosity of the benefits provided by the law negatively affected the work duration and earnings among couples when only the wife is insured. In contrast, their sick leaves were positively influenced. Concerning spillover effects, wives significantly responded to the change of benefits in terms of work duration and earnings. The study also attempts to identify the mechanism underlying the effects by disaggregating them by family income and couples’ ages. The results suggest that low-income couples and young couples are sensitive to the law’s introduction. The article integrates knowledge from the fields of labor economics, social welfare, and public policy.

Reproductive Ethics and Family

Reproductive Ethics and Family

المساندة الاجتماعیة للمسنین وتصور مقترح من منظور الممارسة العامة فى الخدمة الاجتماعیة لمواجهتها

الملخص باللغه العربية الدراسة بعنوان معوقات تحقيق المساندة الاجتماعية للمسنين وتصور مقترح من منظور الممارسة العامة فى الخدمة الاجتماعية لمواجهتها وتهدف الى تحديد المعوقات التى تحول دون تحقيق المساندة الاجتماعية للمسنين والتوصل لتصور مقترح من منظور الممارسة العامة فى الخدمة الاجتماعية لمواجهتها.وذلک من خلال تحديد المعوقات المرتبطة بالمسن نفسه.وهى عدم مشارکة في الانشطة والبرامج ,وعدم قدرتة على التکيف مع المتغيرات المجتمعية, وتفضيلة الانعزال عن الناس الشعور بعدم الثقة فى النفس, والسماح باستغلالة ماليا.والمعوقات المرتبطة باسرة المسن وهى عدم تقبل افراد الاسرة له وعدم تفهمهم لحاجاتة ومشکلاتة وعدم تواصلهم معة واستغلالة ماليا واساءة معاملتة وعدم اصطحابة معهم وانشغالهم بحياتهم.والمعوقات المرتبطة بالموسسة وهى عدم توفر الموارد اللازمة وعدم الاستفادة من الخبرات والقدرات المتاحة وعدم اشراک المسنين في اختيار برامجهم والبرامج تقليدية وغير متنوعة وعدم توافر اخصائيين و مشرفين متحصصين ولا يتم تحديدالاحتياجات والخدمات باسلوب علمى عدم تنميه العلاقات الايجابية وشغل وقت الفراغ.والمعوقات المرتبطة بالمجتمع وهى عدم وجود مؤسسات مجتمعية کافية وعدم وجود متخصصين ومتطوعين للعمل مع المسنين ضعف قانون التامينات والمعاشات وعدم سن تشريعات لحمايه المسنين ومنع الاساءة اليهم وتجاهل المجتمع لهم.وفى ضوء ذلک توصلت الدراسة الى تصور مقترح لمواجهتها. الکلمات المفتاحية:المعوقات-المساندة الاجتماعية-المسنين-الممارسة العامة الملخص باللغه الانجليزية The study is titled Obstacles to Achieving Social Support for the Elderly and a proposed conception from the perspective of general practice in social work to confront them, and aims to identify the obstacles that prevent the achievement of social support for the elderly and arrive at a proposed perception from the perspective of general practice in social work to face them, by identifying the obstacles associated with the elderly themselves. Lack of participation in activities and programs, his inability to adapt to societal changes, the preference for isolation from people, the feeling of lack of self-confidence, and permission for financial exploitation. The obstacles related to the elderly’s family are the lack of acceptance by family members of him, their lack of understanding of his needs and problems, their lack of communication with him, financial exploitation, abuse and lack of Accompanying them and their preoccupation with their lives, the obstacles associated with the institution, which are the lack of necessary resources, the lack of available expertise and capabilities, the failure to involve the elderly in choosing their programs, traditional and non-diversified programs, the lack of specialists and specialized supervisors, and the needs and works are not defined in a scientific manner, not to develop positive relationships and occupy leisure time. Associated with society is the lack of community institutions Sufficient awareness, and the lack of specialists and volunteers to work with the elderly, the weakness of the insurance and pensions law, and the failure to enact legislation to protect the elderly and prevent abuse and society's disregard for them. Key words: Obstacles - Social Support - The Elderly - General Practice

An Arbitrary Approach to Insurance Claims with an Emphasis on Judicial Procedure (Compulsory Third Party Liability Insurance for Motor Vehicle Accidents)

The expansion of arbitration rules and the increase in number of claims in insurance disputes have magnified the need for the acceptance of arbitration in this area more than ever. Although different prohibitions and limitations exist, the acceptance of the general principle of arbitrability reinforces the mindset where arbitration is allowed in insurance claims. Despite this, the legislator has not explicitly mentioned arbitration in the law on compulsory third party liability insurance for motor vehicle accidents, and this silence and the existence of certain rules, has led to doubts about the acceptance of arbitration in such claims. Reservations regarding the issues that may arise in public order due to arbitration, the failure to mention arbitration in the provisions of the Compulsory Insurance Law, and the vagueness of some of the provisions of the law have led to the ambiguity of the arbitrability of insurance claims. Nevertheless, these doubts can be resolved if a clear distinction between civil liability and criminal liability insurance coverage is placed. Once this happens, there is no obstacle stopping the acceptance of arbitration. In this study, the descriptive and analytical method was employed. Furthermore, the legal limitations and prohibitions in referring insurance claims to arbitration, and the advantages and disadvantages of accepting arbitration, have been analyzed.

ENGLISH INSURANCE LAW REFORMS: LESSONS FOR SOUTH AFRICA

Insurance law in the United Kingdom (UK) has recently undergone significant reforms. Until 2015, insurance law in the United Kingdom was still largely regulated by the Marine Insurance Act 1906. This meant that a statute created over a hundred years ago was still regulating insurance law. The need for the more recent reforms was evidently dire. The Law Commission undertook an investigation that highlighted the need for new insurance laws. The result was the enactment of the Insurance Act 2015. There are some significant changes in the new Act concerning fraudulent claims, breaches of good faith and the duty of disclosure. The new laws appear to be much more pro-policyholder than was the case in the previous regime. This article undertakes a detailed analysis of these reforms and also presents a comparison with South African laws. The ultimate question is whether South Africa can learn anything from the recent reforms to UK insurance law.